R & Ors (Minors), R (on the application of) v The Child and Family Court Advisory and Support Service

CAFCASS is subject to general statutory duties to make provision for children to be represented in care proceedings and for the performance of children’s guardians’ functions. Those duties are amenable to judicial review and operate before a guardian is appointed.

They do not create an individual right requiring CAFCASS to allocate a guardian in every case within a fixed period. The obligation is to make an allocation as soon as reasonably practicable, assessed having regard to CAFCASS’ resources, general functions, and competing demands in other cases. Delay alone does not establish a breach of Articles 6 or 8 of the Convention. The claims were dismissed.

Four children involved in care proceedings sought judicial review of delays by CAFCASS in allocating children’s guardians. The claimants contended that the delays were so substantial that the guardians could not effectively discharge their statutory duties, and that CAFCASS had breached statutory and Convention obligations.

CAFCASS accepted a general obligation to provide its service but denied any individual duty to allocate a guardian within a particular timetable. The court considered the statutory scheme, the Family Procedure Rules, the Public Law Outline, and earlier decisions concerning CAFCASS. The central issue was whether the legislation imposed an enforceable individual duty to allocate a guardian, and, if so, within what period.

1. The claims failed. The duties imposed by sections 12(1)(c) and 12(2) of the Criminal Justice and Court Services Act 2000 are amenable to judicial review. They require CAFCASS to make provision for children to be represented and for officers’ statutory functions to be performed.
2. Those duties operate before an officer is appointed in a particular case. CAFCASS must design, staff and organise an appropriate national scheme, including provision of an appropriate number of officers to enable guardians to be provided in care proceedings.
3. The duties are nevertheless general duties. They do not confer an enforceable individual right on each child to the appointment of a guardian, nor do they require allocation within a particular period. No clear and workable fixed timetable can be derived from the statutory scheme.
4. The most that can be read into the legislation is an obligation to appoint a guardian as soon as reasonably practicable, having regard to CAFCASS’ general functions and duties, its human and financial resources, and competing demands in other cases. Reasonable practicability is not assessed solely from the perspective of the court dealing with the individual care proceedings.
5. The court respectfully agreed with the reasoning and conclusions in R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin). It also agreed with Re MH (A Child) and Re SB and MB (Children) [2001] 2 FLR 1334, but held that decision did not establish the individual allocation duty contended for.
6. The Convention did not alter the result. The legislation was not incompatible with the Convention. Delay in allocating or appointing a guardian did not, without more, establish an actionable breach of Articles 6 or 8. The family court remained responsible for ensuring Convention compliance, and absence of a guardian at some stage did not necessarily create a breach.
7. The claims for judicial review were dismissed. The court found no separate irrationality or other public law ground of challenge.

First-instance judicial review proceedings. The judgment records the earlier decision of R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin), but this case was not an appeal from that decision.